Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NUMBER: 14000) AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 WEST WASHINGTON STREET PHOENIX, ARIZONA 85007B2997 EMAIL: [email protected] TELEPHONE: (602) 542B4686 (STATE BAR NUMBER: 022246) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
GLEN JOSEPH STILES,
Petitioner,

CIV 02­2483­PHX­EHC (NFF) RESPONDENT'S RESPONSE TO PETITIONER'S MOTION TO AMEND

-vsDORA B. SCHRIRO, et al.,
Respondents.

Pursuant to this Court's orders filed September 1 and October 14, 2005,

17 respectively, Respondents respectfully submit their opposition to Petitioner's 18 motion to amend. (Doc. 35.) As explained more fully in the following 19 Memorandum of Points and Authorities, the Court should deny the motion to 20 amend and proceed to rule on the already-filed Report and Recommendation (Doc. 21 27) and Petitioner's objections to it under Documents 32 and 33. 22 23 24 25 26 27 28
Case 2:02-cv-02483-EHC Document 41 Filed 11/04/2005 Page 1 of 13

DATED this 4th day of November, 2005.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL s/AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

1 2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES Procedural Background. On March 23, 2005, United States Magistrate Judge Nancy F. Fiora issued a

4 Report and Recommendation, recommending that this Court deny Petitioner's 5 habeas petition on both procedural-default and substantive-merit grounds. (Doc. 6 27.) The Report and Recommendation details the underlying case's procedural 7 posture and factual history. 8 After obtaining two extensions of time, Petitioner filed his objections to the 9 Report and Recommendation. (Doc. 28­33.) Over three months later, Petitioner 10 filed a document entitled, "Motion to Amend Writ of Habeas Corpus Pleading Due 11 to Evidence Newly Discovered Through Due Diligence" (Doc. 35.) to which 12 Respondents file their opposition.1 13 14 15 16 II. Federal law requires this Court to deny Petitioner's motion to amend because Petitioner's failure to exercise due diligence makes the proposed amendment violate the one-year statute of limitations. In his motion to amend, Petitioner claims that he exercised due diligence in

17 obtaining his case file from his trial counsel, only to find out that the file contained 18 an additional blood-test comparison (between Petitioner's blood and the blood on 19 the bed sheets of one of the victims) that produced a different result than the blood20 test comparison that the same criminalist performed one year later in 1998 and 21 which the prosecution presented to the jury. (Doc. 35 at 4­6, discussing the 22 testimony of Phoenix DPS criminalist Kathleen R. Sartor [attached to 23 Respondents' response as Exh. A at 29­41].)2 24 25
________________________
1

Although Respondents have received a document from Petitioner (or his family) in the mail (appearing to seek discovery), Petitioner apparently has not filed that 26 document with the Court and hence Respondents will not respond to that non-filed document. 27 2 Ms. Sartor testified on November 2, 1998, despite the mistaken date on the Reporter's Transcript that states that the testimony occurred on November 2, 1999. 28
Case 2:02-cv-02483-EHC Document 41 2 Filed 11/04/2005 Page 2 of 13

1

In the report presented to the jury during the trial, the results produced the

2 probability that the blood found on one of the victim's sheets came from a 3 Caucasian to be one in 26 million; in the report that Petitioner claims to have 4 found, the same test led to a probability of "only" one in 12 million. (Doc. 35 at 5 Exh. F, bate-stamped pages 000311 and 000305.) 6 Petitioner seeks to amend his habeas petition to allege that his trial counsel 7 performed ineffectively in failing to produce and argue that the probability was 1 in 8 12 million (as opposed to 1 in 26 million) and failing to cross-examine the 9 criminalist, and ineffectively arguing a Fourth-Amendment violation. (Doc. 35 at 10 4­8.) 11 Petitioner's motion to amend also alleges that Petitioner would have argued 12 his Fourth-Amendment-based ineffective-counsel claim differently, as well. This 13 part of Petitioner's argument is meritless on its face. Petitioner has long known 14 that the Seattle Police Department retained a portion of his blood sample and then 15 sent it to the Phoenix Police Department for testing. (Respondents' habeas 16 Answer, Exh. I, third page of Petitioner's text under his first ground for post17 conviction relief that he filed on July 20, 2000 ["A sample of the defendant[']s 18 blood was not drawn by the [P]hoenix [P]olice [D]epartment. Samples of the 19 defendant[']s blood were obtained prior to his arrest because the defendant was 20 convicted of a sexual offense in the [S]tate of [W]ashington"].) 21 The remainder of his motion either fails to allege a claim or makes irrelevant 22 allegations in the context of federal habeas corpus. Respondents will therefore 23 focus on the motion's ineffective-assistance claims. 24 A. 25 Governing law. Although the Federal Rules of Civil Procedure generally provide that an

26 amendment to a pleading relates back to the original pleading's date when the 27 proposed amended claim "arose out of the conduct, transaction, or occurrence set 28
Case 2:02-cv-02483-EHC Document 41 3 Filed 11/04/2005 Page 3 of 13

1 forth or attempted to be set forth in the original pleading[,]" the original conduct, 2 transaction, or occurrence in the context of habeas corpus is not as broad as the 3 underlying trial or sentencing itself. See Mayle v. Felix, 125 S. Ct. 2562, 2569­70 4 (2005). Instead, the relevant "conduct, transaction, or occurrence set forth" in the 5 original pleading is the actual proposed-amended claim, not the underlying trial 6 itself. Id. at 2571. In other words, "Rule 15(c)(2) relaxes, but does not obliterate, 7 the statute of limitations; hence relation back depends on the existence of a 8 common `core of operative facts' uniting the original and newly asserted claims." 9 Id. at 2572; see also id. at 2574 (confirming that "[s]o long as the original and 10 amended petitions state claims that are tied to a common core of operative facts, 11 relation back will be in order") (footnote omitted). 12 Reversing the Ninth Circuit (and the reasoning of the Seventh Circuit's view 13 as well), the Supreme Court embraced the majority view of the Circuits which 14 "allow relation back only when the claims added by amendment arise from the 15 same core facts as the timely filed claims, and not when the new claims depend 16 upon events separate in `both time and type' from the originally raised episodes." 17 Id. at 2570­71 (quoting United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 18 1999)); see also Jackson v. Roe, 425 F.3d 654, 660 n.8 (9th Cir. 2005) (observing 19 that the Felix Court rejected the previous Ninth Circuit understanding of Rule 20 15(c) in the habeas context as "too broad" and recognizing that, under Felix, "an 21 amended claim in a habeas petition relates back for statute of limitations purposes 22 only if it shares a `common core of operative facts' with the original claim"). 23 "Given AEDPA's `finality' and `federalism' concerns," the high court explained, "it 24 would be anomalous to allow relation back under Rule 15(c)(2) based on a broader 25 reading of the words `conduct, transaction, or occurrence' in federal habeas 26 proceedings than in ordinary civil litigation[.]" Felix, 125 S. Ct. at 2574 (citations 27 omitted). 28
Case 2:02-cv-02483-EHC Document 41 4 Filed 11/04/2005 Page 4 of 13

1

In sum, a habeas petitioner's proposed amendment must tightly track the

2 facts of the already-pleaded original claim. See United States v. Ciampi, 419 F.3d 3 20, 24 (1st Cir. 2005) (analyzing a habeas-based relation-back issue under the Felix 4 Court's "stringent standard . . ."); see also Brown v. Norton, 2005 WL 2671360, * 4 5 (D. N.J. Oct. 17, 2005) (noting that the Felix Court "required an identity of facts at 6 a fairly specific level").3 7 8 B. 9 10 11 12 Under the strict standard that the Supreme Court embraced in Felix, 13 Petitioner's proposed amendment appears to "relate back" to his ineffective14 assistance-of-counsel claim that he advanced as Ground I in his habeas petition. In 15 the motion to amend, Petitioner alleges that his counsel acted ineffectively in 16 (1) failing to present a document that showed that the chances of the blood found 17 on a victim's bed sheets as coming from a Caucasian would be 1 in 12 million, not 18 1 in 26 million, and (2) failing to cross-examine the Phoenix DPS criminalist who 19 testified on the 1998 blood-comparison report. (Doc. 35 at 4­8.) 20 In the original and timely filed habeas petition, Petitioner attacked his 21 counsel's performance on this score: 22 ________________________ 23 24 25 26 27 28 The federal courts' analysis of § 2244(d)(1)(D)'s equivalent in the context of federal convictions and collateral attacks under § 2255, ¶ 6(4) makes citation to the federal-conviction cases authority for interpreting the former statute. See Shannon v. Newland, 410 F.3d 1083, 1088 n.5 (9th Cir. 2005) (defending the panel's ordering of discussion at oral argument of Johnson v. United States, 125 S. Ct. 1571 (2005), even though Johnson concerned the collateral attack of a federal prisoner because "[t]he two provisions are almost identical" and "the Supreme Court has interpreted the statute-of-limitations provision of § 2244 and § 2255 in concert with one another") (citing Lackawanna County Dist. Att'y v. Coss, 532 U.S. 394, 402 (2001) (plurality opinion of O'Connor, J.)).
5 Filed 11/04/2005
3

Although Petitioner's proposed amendment "relates back" to the filing of the habeas petition, this Court should deny the motion to amend because Petitioner failed to exercise the Congressionally mandated "due diligence" in discovering the "factual predicate of the claim" under § 2244(d)(1)(D).

Case 2:02-cv-02483-EHC

Document 41

Page 5 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Trial counsel failed to prepare for the introduction of blood identification evidence at trial, failed to cross examine the prosecution[']s serology expert witness and failed to present defense exp[e]rt in the field of serology to testify for the defense. The facts are as follows. The State presented at trial, blood evidence against the defendant. Specifically a sheet with blood stain[]s on it, which was found in the residence of the 10-16-1996 incident. The State called Kathleen Sartor a criminalist who is employed at the Department of [P]ublic Safety crime laboratory in [P]hoenix. Kathleen Sartor testified at Trial for the State. Kathleen[']s testimony was that the blood found on the sheet is consistent with having come from the defendant. (See R.T. November 2, 1998 at pages 36-40 for the above statement.) At the conclusion of the Direct examination by the State attorney, Roberts, of Kathleen Sartor testimony. Trial Judge KATZ stated (Cross-examination Mr[.] Clark)[.] Trial counsel stated (Judge, I have no questions, Thanks) (See R.T. November 2, 1998, at pages 40 and 41 for Mr[.] Clark[']s above statement) (See exhibit 10 for Petitioner's father's affidavit)[.] Trial counsel failed to present any exp[e]rt witness in the field of serology for the defense to challenge State[`]s exp[e]rt witness' testimony and findings. The Petitioner would ask the Court to look at Trial Counsel[']s [c]umulative error[]s in this ineffective assistance issue. (Doc. 1, Ground 1, page 15.) The proposed amendment­­asking the Court to consider his trial counsel's

22 failure to present (or cross-examine regarding) a 1997 blood-comparison report by 23 the same DPS criminalist that is dated 1-year previously to the 1998 blood24 comparison report presented at trial­­demonstrates the existence of "a common 25 `core of operative facts' uniting the original and newly asserted claims." Felix, 125 26 S. Ct. at 2572 & 2574; cf. Ciampi, 419 F.3d at 24 (citing Felix in confirming that "a 27 petitioner does not satisfy the Rule 15 `relation back' standard merely by raising 28 some type of ineffective assistance in the original petition, and then amending the
Case 2:02-cv-02483-EHC Document 41 6 Filed 11/04/2005 Page 6 of 13

1 petition to assert another ineffective assistance claim based upon an entirely 2 distinct type of attorney malfeasance") (citations and footnote omitted). 3 Nonetheless, this Court should deny the motion to amend because 4 Petitioner's conduct trespasses the Congressionally mandated 1-year limitations 5 period under the AEDPA. Specifically, Petitioner failed to exercise the requisite 6 "due diligence" in obtaining the 1997 report that pegs the chances of the blood on 7 the sheets as coming from a Caucasian at 1 in 12 million. 8 As Respondents conceded in their Answer, Petitioner's filing of his habeas 9 petition on December 10, 2002 comported with the mandatory limitations period 10 that concluded on April 15, 2003. (Doc. 16 at 3­4.) Petitioner filed his motion to 11 amend on July 29, 2005, over 2 years beyond the limitation period's conclusion. 12 (Doc. 35.) Implicitly recognizing the impropriety of moving to amend a habeas 13 claim beyond the statute-of-limitations period, Petitioner attempts to rescue his 14 motion from dismissal on timeliness grounds by claiming that he exercised due 15 diligence in obtaining newly discovered evidence, implicitly invoking the 16 alternative statute-of-limitations starting period under 28 U.S.C. § 2244(d)(1)(D) 17 that triggers the limitations period on "the date on which the factual predicate of 18 the claim or claims presented could have been discovered through the exercise of 19 due diligence." See also Pace v. DiGuglielmo, 125 S. Ct. 1807, 1813 n.6 (2005). 20 The Court should deny the motion because Petitioner exercised something 21 far less than "the exercise of due diligence." Assuming the Petitioner-favorable 22 operation of the prison mailbox rule under Houston v. Lack, 487 U.S. 266, 270­74 23 (1988) and Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), Petitioner 24 responded to his post-conviction counsel's submission of a brief in which counsel 25 revealed that he could discover no meritorious issues to advance by filing on July 26 20, 2000, a pro se post-conviction-relief petition in which Petitioner alleged a 27 plethora of reasons why he believed that his trial counsel committed 28
Case 2:02-cv-02483-EHC Document 41 7 Filed 11/04/2005 Page 7 of 13

1 constitutionally ineffective assistance. (Respondents' original Answer's Exh. H, I, 2 & T.). At that point in time, then, Petitioner knew that Petitioner was alleging 3 flaws in his prior counsel's work, and hence Petitioner needed to exercise due 4 diligence in pursuing this claim by, for example, requesting his file from his former 5 trial counsel. Instead, Petitioner waited until January 11, 2005, to request his file 6 from his former trial counsel. (Exh. B, attaching Petitioner's letter to his trial 7 counsel dated Jan. 11, 2005.) 8 This 4.5-year gap between Petitioner's July 20, 2000, recognition that 9 Petitioner was pressing an ineffective-assistance-of-counsel claim and Petitioner's 10 January 11, 2005, decision to request his file from the very trial counsel upon 11 whom he based his constitutional attack demonstrates the absence of any sort of 12 "due diligence" in pursuing his claim: according to the Supreme Court, even a 13 delay of less than 2 years constitutes an unreasonable delay. See Johnson, 125 S. 14 Ct. at 1582 (concluding that, "even if we moved the burden of diligence ahead to 15 the date of finality of the federal conviction or to AEDPA's effective date days 16 later, Johnson would still have delayed unreasonably, having waited over 21 17 months. . . . [O]n this record, we think Johnson fell far short of reasonable 18 diligence in challenging the state conviction").4 19 ________________________ 20 21 22 23 24 25 26 27 28
Case 2:02-cv-02483-EHC Document 41 8 Filed 11/04/2005 Page 8 of 13
4

Even if this Court believes that a later statute-of-limitations starting date should apply, the latest trigger date would be the conclusion of his Petitioner's postconviction-relief efforts in state court on April 15, 2002, as this date represents the conclusion of all of Petitioner's state-court proceedings. (Respondents' original Answer, attaching Exh. M (demonstrating the April 15, 2002 decision of the Arizona Supreme Court that denied review of the Arizona Court of Appeals' denial of relief on Petitioner's petition for review of the trial court's post-conviction-relief dismissal).) At that point, the AEDPA offered Petitioner 1 year in which to exercise due diligence in prosecuting his ineffective-assistance claim on federal habeas. (Respondents' original Answer at 3­4.) Instead, Petitioner allowed a nearly three-year gap between, on the one hand, the April 15, 2002, conclusion of Petitioner's post-conviction proceedings and, on the other hand, the first time that he requested his file on January 11, 2005, from the trial attorney that forms the basis of his ineffective-assistance claim. (Exh. B, attaching Petitioner's letter to his trial counsel dated Jan. 11, 2005.) If the Supreme Court deems a less-than-two(continued ...)

1

Needless to say, Petitioner's alleged diligence in filing his motion to amend

2 after allegedly discovering the alleged new fact cannot make up for Petitioner's 3 lack of due diligence in making efforts to obtain his former counsel's file in order 4 to discover the new fact in the first place. See Johnson, 125 S. Ct. at 1581 5 (stressing that "[w]here one `discovers' a fact that one helped to generate, however, 6 whether it be the result of a court proceeding or of some other process begun at the 7 petitioner's behest, it does not strain logic to treat required diligence in the 8 `discovery' of that fact as entailing diligence in the steps necessary for the 9 existence of that fact") (citation omitted). "To see why this is so," the Supreme 10 Court explained, "one need only consider a more commonplace use of the 11 paragraph four limitation rule": 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 When a petitioner bases his § 2255 claim on the result of a DNA test, it is the result of the test that is the `fac[t] supporting the claim' in the § 2255 motion, and the 1year limitation period therefore begins to run from the date the test result is `discovered.' Yet unless it is to be read out of the statute, the due diligence requirement would say that the test result only triggers a new 1-year period if the petitioner began the testing process with reasonable promptness once the DNA sample and testing technology were available. Under the dissent's view, however, the petitioner could wait untold years (perhaps until the death of a key prosecution witness) before calling for the DNA test, yet once he `discovered' the result of that test, he would get the benefit of a rejuvenated 1-year period regardless of his lengthy delay. Such a result simply cannot be squared with the statute's plain text and purpose. Johnson, 125 S. Ct. at 1581­82 (alteration of the quoted portion of § 2255 added by the Johnson Court).
________________________ ( ... continued)

27 year gap to constitute an unreasonable delay, so must this Court find Petitioner's delay of nearly three years to be unreasonable. See Johnson, 125 S. Ct. at 1582. 28
Case 2:02-cv-02483-EHC Document 41 9 Filed 11/04/2005 Page 9 of 13

1

Petitioner's conduct demonstrates why the Supreme Court recently endorsed

2 the dissenting view of Ninth Circuit Judge Richard A. Tallman, given that 3 acceptance of Petitioner's motion to amend­­filed long after the expiration of the 4 statute of limitations, and without the mandatory due diligence that AEDPA 5 requires for the discovery of a new claim­­would obliterate the Congressionally 6 mandated statute of limitations for collateral attacks against State convictions. See 7 Felix, 125 S. Ct. at 2573­74 (buttressing Judge Tallman's dissent in the case below 8 that the Ninth Circuit's rule would permit "the `relation back' doctrine to swallow 9 AEDPA's statute of limitation" by adding that, "[i]f claims asserted after the one10 year period could be revived simply because they relate to the same trial, 11 conviction, or sentence as a timely filed claim, AEDPA's limitation period would 12 have slim significance"). 13 In other words, granting Petitioner's motion to amend would undermine the 14 AEDPA's statute of limitations and Congress's concerns for finality by permitting 15 the continued search for new evidence after the filing of the habeas petition, after 16 the statute of limitations expires, after the Magistrate Judge issues a Report and 17 Recommendation, and after the habeas petitioner himself has filed objections to 18 the Report and Recommendation. Petitioner offers no explanation for his failure to 19 request his file from his attorney despite nearly three years of no activity between 20 the April 15, 2002 conclusion of his state-court litigation and the first time that 21 Petitioner can document ever requesting his file from his attorney through his letter 22 dated January 11, 2005. As explained above in the fourth footnote, Petitioner's 23 absence of due diligence becomes even more apparent when considering the fact 24 that, as early as July 20, 2000, Petitioner alleged ineffective assistance of counsel 25 in his pro se post-conviction-relief petition. 27 petition that Respondents attached as Exh. I.) 28
Case 2:02-cv-02483-EHC Document 41 10 Filed 11/04/2005 Page 10 of 13

(Respondents' habeas Answer,

26 attaching Exh. T as the final pages of Petitioner's pro se post-conviction-relief

1

That is, by no later than July 20, 2000, Petitioner knew that Petitioner

2 believed his counsel performed ineffectively, yet Petitioner failed to request his file 3 from this impugned counsel until January 11, 2005­­nearly 4.5 years later. 4 Regardless of the date on which this Court determines that Petitioner's 5 limitations period for obtaining evidence to back his habeas-based ineffective6 counsel claim began to run­­either the earlier date of Petitioner's filing his pro se 7 post-conviction-relief petition on June 20, 2002, or the later date when Petitioner's 8 state-court-based post-conviction proceedings concluded on April 15, 2002­­both 9 of the potential starting dates produce a delay greater than 2 years, and hence 10 Petitioner's minimal efforts cannot be validated as an exercise in due diligence 11 under § 2244(d)(1)(D). See Johnson, 125 S. Ct. at 1582 (refusing to consider a 12 delay of "over 21 months" to be duly diligent). 13 Finally, Respondents note that Federal Rule of Civil Procedure 1 requires 14 this Court to construe and administer the rules "to secure the just, speedy, and 15 inexpensive determination of every action." Here, Petitioner presents this Court 16 with a motion to amend that he filed after the United States Magistrate Judge 17 issued her Report and Recommendation (and even after Petitioner himself filed his 18 objections to that report), all so that he can allege that the outcome of his trial 19 would have been different if only the jurors knew that the chances of the blood on 20 a victim's sheets being from a Caucasian were not 1 in 26 million, but, instead, 1 in 21 12 million. Petitioner cannot realistically expect that, under the facts of his case, 22 that the jury's decision "would reasonably likely have been different" if only his 23 trial attorney presented and cross-examined on the alleged issue that the probability 24 of the blood on a victim's sheet coming from a Causation was not 1 in 26 million 25 but, instead, only 1 in 12 million. See Strickland v. Washington, 466 U.S. 668, 26 695­96 (1984) (requiring a court presented with an ineffective-assistance claim to 27 "consider the totality of the evidence before the judge or jury" and establishing 28
Case 2:02-cv-02483-EHC Document 41 11 Filed 11/04/2005 Page 11 of 13

1 that, "[t]aking the unaffected findings as a given, and taking due account of the 2 effect of the errors on the remaining findings, a court making the prejudice inquiry 3 must ask if the defendant has met the burden of showing that the decision reached 4 would reasonably likely have been different absent the errors"). Rule 1 counsels 5 against accepting such an untimely and, frankly, non-meritorious amendment at 6 this time. 7 III. 8 Conclusion. On this record, Petitioner's failure to exercise the due diligence that

9 Congress requires under § 2244(d)(1)(D), combined with the requirement to 10 administer the rules of procedure in a just and speedy manner, justifies denying the 11 motion to amend. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:02-cv-02483-EHC Document 41 12 Filed 11/04/2005 Page 12 of 13

RESPECTFULLY SUBMITTED this 4th day of November, 2005.
TERRY GODDARD ATTORNEY GENERAL

s/AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION ATTORNEYS FOR RESPONDENTS

1

CERTIFICATE OF SERVICE

I hereby certify that on November 4, 2005, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF System for filing and deposited for mailing the attached document and transmittal of a Notice of Electronic Filing 3 to the following non-registered CM/ECF participant: 4 GLEN JOSEPH STILES, #142548 CELL B7 5 RCDC-PECOS Reeves County Detention Center 6 P.O. Box 2038 Pecos, Texas 79772 7 Petitioner Pro Se 8 9 10 s/AARON J. MOSKOWITZ 11 12 CRM99­0172 13 122454 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:02-cv-02483-EHC Document 41 13 Filed 11/04/2005 Page 13 of 13